Supervisors Ponder How Strict to Be With Cannabis Cultivators

The county has a delicate balancing act to perform when it comes to enforcing the regulations spelled out in its Commercial Medical Marijuana Land Use Ordinance (CMMLUO). That was the message repeated over and over again at today’s Board of Supervisors meeting.

Here’s the conundrum: If the county is too lenient, turning a blind eye to violations of the ordinance, then the growers who have applied for permits will do whatever they want with their land — start new grows, expand existing ones, build infrastructure and grade hillsides — assuming they won’t get busted because they’re in the system. This, in fact, is exactly what’s already happening, according to a staff report.

But if the county is too strict, opting to levy fines and deny permits for even minor violations of the ordinance, then it will scare away growers who may want to come into compliance in the future.

With only about 2,300 applications on file (many of them woefully incomplete), the vast majority of weed cultivators in the county are still operating entirely in the black market. As First District Supervisor Rex Bohn phrased it this morning, “We have 8,000 dope growers out there who have no intention of getting licensed [and] coming into the fold.”

Except some of them might, actually, want to get licensed. So today the board wrestled with a quandary often experienced by parents and teachers — how best to enforce the rules without inciting rebellion.

The item was brought forward by the board’s medical marijuana ad hoc committee, comprised of Second District Supervisor Estelle Fennell and Fifth District Supervisor Ryan Sundberg, who missed today’s discussion because he’s in San Diego attending his first meeting as a member of the California Coastal Commission.

The county’s building and planning director, John H. Ford, introduced the issue. He said his staff has been noticing that cultivation sites are being launched or expanded before permits have been issued. (To date his heavily burdened staff has issued only about 30 permits.) This poses several problems, Ford said. For one thing, the ordinance says permits can’t be issued unless the applicant is in compliance. So should all these applications be denied?

Or should those applicants be required to restore their properties — tear down the un-permitted structures, uproot the plants, etc.? That, too, is problematic, Ford said. You can’t exactly re-grade a hill that’s been leveled, for example.

So what’s the solution? Should there be fines? Should violators be given a chance to come back into compliance? Ford was looking for broad direction from the board.

Fennell noted that not every applicant who’s in violation of the ordinance in necessarily “gaming the system.” Some have been given direction from other regulatory agencies, such as the Regional Water Quality Control Board, and believe they’re doing the right thing.

“It’s a tricky situation,” she said.

Bohn said cracking down on applicants would be like shooting fish in a barrel, The real problems, he said, are caused by growers in the hills who have “blown out” their operations, grading hillsides and cultivating on a massive scale without any intention of ever complying with laws and regulations.

Public comments came almost exclusively from people working directly or indirectly in the industry, and the speakers were virtually unanimous in warning against harsh penalties on growers participating in the county’s permitting system.

Local environmental attorney Paul Hagen, who does cannabis permitting consulting, commended county staff and supervisors for taking on this challenge but said there’s an irony to being in compliance: “They’re the easiest ones to catch and prosecute.”

Terra Carver, executive director of the Humboldt County Growers Alliance, asked the county to “be mindful that some of these applicants are trying to do the best thing.” She suggested differentiating between egregious and minor infractions and issuing fines accordingly so as not to scare well-meaning growers away. “The core mission of this ordinance is to bring as many as possible into compliance,” she said.

The Humboldt County Growers Alliance submitted a detailed letter to the board with explicit policy recommendations and concerns. Board members and public speakers alike voiced support for the letter’s ideas and general perspective.

“We request the county be mindful that some of these applicants are trying to do the
right thing by engaging in a very uncharted and untested system and are now facing
violations based on their effort to comply,” the letter states. The full thing is attached as a pdf file here.

Stephen Dillon of the Humboldt Sun Growers Guild acknowledged that there are people out there deliberately abusing the system, but he advocated for the many others struggling to navigate bureaucratic hurdles from a wide variety of agencies, including the county, the state, the regional water board and more.

After public comment, Fennell asked newly appointed Sheriff Billy Honsal to address his office’s approach to enforcement. His goal, he said, is to honor the promise of amnesty for people working within the system.

“We want people to come out of the black market and into the light,” he said. The Sheriff’s Office priority will be cracking down on overtly criminal activity, which remains an “insurmountable task,” he said, given the scale of the local industry and his own force of just three or four enforcement officers on that particular assignment.

‘I think the county has bent over backwards for the growers in this county.’ —Sheriff Billy Honsal

Honsal, who has gone on record as being no big fan of the cannabis industry or its product, said he has no sympathy for those bypassing permits and licensing.

“I think the county has bent over backwards for the growers in this county,” Honsal said. “There’s no excuse for not coming into compliance.”

Ford told the supervisors that most of the gross violations are people who applied for new grows and went ahead with them before receiving a permit, and he assured the board that his staff isn’t looking for loopholes or “gotcha violations” but is instead “looking for people flagrantly disregarding the process.”

Fennell proposed instituting a system of fines at double the rates listed in Measure S, which ushered in the county’s voter-approved weed tax. But her motion died for lack of a second.

Bohn tried something simpler: a motion directing Ford to take the feedback he’d heard this morning and “act upon it.”

Third District Supervisor Mike Wilson chimed in, saying compliance with regulations should have a built-in motivator — namely, access to the burgeoning legal market in California. He also suggested that the future of law enforcement on illegal grows may depend on automation, satellites and GIS technology. And he agreed with pretty much everyone who spoke today that over-enforcement would be counterproductive.

Ultimately, the board unanimously approved Bohn’s motion, directing Ford to move forward with the input that he got today. Before the vote Ford summarized that input, saying only those committing egregious violations in total disregard of their permit applications will be subject to fines.